Lord Mackay of Ardbrecknish: My Lords, the reason that we return to the matter again and again is that we are overcome with amusement at the Government's arguments. They have gone a little further tonight. They have tried some new arguments: that there might be confusion with the Premier Division. My noble and learned friend Lord Mackay of Drumadoon who knows about these matters points out that in the higher courts of Scotland there is a First Division and a Second Division. Does the noble Baroness think that plaintiffs arraigned before either of those courts believe that they are going to a football match? Of course not. I think that that perhaps takes the prize.

My noble and learned friend also points out that in a court case reported recently the Lord Advocate had to oppose "Robbie the Pict". If someone can be called "Robbie the Pict" in legal journals, it seems to me that someone can be called Premier or First Minister.

The argument is definitely Alice in Wonderland. The noble Baroness's position is, "Words mean what I say they mean, and that is it". She answered my noble and learned friend Lord Fraser of Carmyllie with a "partial" direct answer. It is either a direct answer or it is not a direct answer. One cannot have a partial direct answer.

Like the other two noble Lords who have spoken, I cannot understand why the Government do not see how ridiculous their position is. The simple fact of the matter is that these people will be called what I think common parlance demands that they be called: that is, Prime Minister or Premier. I prefer the government to start with Premier; they might get that to hold. If they do not do so, the title will be Prime Minister. There is the Speaker. There is the First Minister; we have dealt with him. The other chaps and "chapesses" will be called Ministers. That is the simple fact of the matter. I believe that the Government are behaving most amazingly.

I should like to put in the Bill proper names for those people--names which are understood around the English speaking world, as my noble friend Lord Renton said. At the very least we should make it clear on the face of the Bill that the parliament can make its own decisions. We shall probably return to the matter at Third Reading to see whether the Government can come forward with any better arguments. I am almost tempted to say that we may give them a prize for the best argument they come up with. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

28 Oct 1998 : Column 2026

10.15 p.m.

Clause 41 [The Scottish Executive]:

[Amendments Nos. 139B and 139C not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 140:

Page 19, line 2, at end insert--
("( ) No Minister of the Crown may be appointed as a Scottish Minister (including as a Scottish Law Officer).").

The noble Lord said: My Lords, this and the related amendment deal with overlapping memberships. Until yesterday morning, the amendment was described in both the Welsh and Scottish Bills as "the Ron Davies amendment". Unfortunately, we have to change that. The problem is that as this and the Welsh Bill are constructed, it is possible for one and the same person to be a Minister of the Crown and a First Secretary or junior Minister in the Scottish government.

Earlier in our proceedings during discussions on agriculture and fisheries, the noble Lord, Lord Sewel, made it clear that:

"UK Ministers are accountable to a UK Parliament and Scottish Ministers are accountable to the Scottish parliament".--[Official Report, 28/7/98; col. 1434.]

The Minister was absolutely right. That is how it will be and that is how it should be. How is it possible for someone to be answerable to the Scottish parliament and to the UK parliament, which are different governments with different responsibilities, different collective Cabinet responsibility and different accountability? It is just not possible.

Earlier in the year Mr. Donald Dewar thought for a moment or two that he might at the same time be Secretary of State for Scotland and First Minister. I suppose that I had better use the term "First Minister" or I shall be sent to the tower for such an infringement of the Government's legalistic view. Mr. Donald Dewar, being an intelligent and honourable man, quickly realised that that was a ridiculous position and indicated that it would not be carried forward. It is a ridiculous position. No one should be allowed to contemplate it. That is true also for the other Ministers. My amendments simply put on the face of the Bill what I believe should be the position. It is that no Minister of the Crown in the United Kingdom Government can at the same time be a Minister in the Scottish parliament.

The noble Lord, Lord Sewel, in his defence, tried to flatter me by saying that my services might be needed by both governments looking after the same portfolio. Even that amount of flattery did not persuade me of the argument. I am not persuaded at all. I believe that we should make it clear that no one should be allowed to do both jobs. It is incompatible with the way we look at government and ministerial accountability. How can the same person be accountable to two different parliaments perhaps for two different policies? It is just not possible.

Therefore, I believe that we should put the words in my amendment on the face of the Bill so that it is clear for all time that no Minister of the Crown may be appointed a Scottish Minister, including a Scottish Law Officer, and no Minister of the Crown may be appointed

28 Oct 1998 : Column 2027

as a junior Scottish Minister. I cannot believe that the noble Lord, Lord Sewel, will say that he can conceive of a circumstance--I hope that he does not give the same one that he tried last time--in which it might be otherwise. I beg to move, in the hope that the Government will either take the amendments on board or promise to return at Third Reading with their own amendment.

Lord Renton: My Lords, when the noble Lord replies, I wonder whether he will enlighten your Lordships as to whether, if somebody is both a Minister of the Crown and a Scottish Minister, he will be able to draw the salaries of both appointments.

Lord Stodart of Leaston: My Lords, I take the greatest risk in intervening, first, as a simple farmer talking about the professions, and, secondly, because of my fairly recent deficiency.

In the vintage days of Ross there were times in the Scottish Standing Committee in another place when there was kudos in taking 40 minutes to make a speech. I achieved that in a debate on the laws of land and tenancy in the Shetlands. I cannot remember the exact title of the debate.

Just today I remembered some advice I had before I got into another place in 1959. I would repeat it to the Opposition then. It was not totally unfounded. It concerned the use of chattels or small items involved in a will. I have only heard today that great expression called praepositus. None of the Opposition knew what I was talking about then.

I have had these glimmers of interest in and professional advice about the law, and I admire the profession. But I would not dream of doing anything other than supporting the argument.

Lord Sewel: My Lords, when we discussed this issue earlier, I offered an argument in defence of the position which was crafted carefully and deliberately to attempt to protect the future employment prospects of the noble Lord, Lord Mackay of Ardbrecknish. On that occasion, he spurned my offer so I took back that argument.

Seriously, we have looked at this matter and I recognise that there is a significant tension between the concepts of both ministerial accountability and collective responsibility and membership by the same person of two different executives. I assure the noble Lord, Lord Mackay of Ardbrecknish, that we have every intention of coming forward on Third Reading with amendments which will deal with this point, both for members of the Scottish executive and junior members, ensuring that they cannot hold office in the two executives concurrently.

Lord Mackay of Ardbrecknish: My Lords, bang goes one good set of amendments that could have given us a lot of sport! Having said that, I am grateful to the Minister. It is common sense and I am pleased that he has seen it. He obviously reflected on his argument on the last occasion and thought that it was not well founded. It seemed to be founded entirely on my

28 Oct 1998 : Column 2028

position 20 years in the future. He probably realised that the Scottish parliament would be in a perilous state if, in 20 years time, it had to rely on my efforts. However, my noble friend Lord Renton is living proof that, if I were as fit as he, 20 years would not make much difference and I would be able to come to Scotland's aid in those circumstances.

Lord Sewel: My Lords, I might take back the offer if the noble Lord continues.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister. This is sensible. It makes the position clear for the future. I am grateful for his comments and for accepting the principle behind the proposal. I look forward to his amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [The Scottish Law Officers]:

Lord Hardie moved Amendment No. 140A:

Page 20, line 16, at end insert--
("(1A) The Lord Advocate and the Solicitor General for Scotland may at any time resign and shall do so if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament.
(1B) Where the Lord Advocate resigns in consequence of such a resolution, he shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted, but only for the purpose of exercising his retained functions.
(1C) Subsection (1B) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate).").

The noble and learned Lord said: My Lords, during consideration of the Bill in Committee, the noble and learned Lord, Lord Rodger of Earlsferry, raised some points upon whether the Lord Advocate could resign and whether he would be required to do so in the event of the parliament resolving that the Scottish executive no longer enjoyed the confidence of the parliament. That led us to consider further whether the Bill deals adequately with the Scottish Law Officers' right to resign and the circumstances in which they should be required to resign. Although there is nothing in the Bill which prevents the Scottish Law Officers from being able to resign, further reflection has led the Government to conclude that the Bill should make it clear that they are able to do so.

Clause 42(2) requires the First Minister to tender his resignation to Her Majesty if the parliament resolves that the Scottish executive no longer enjoys the confidence of the parliament. Clause 44(3)(c) requires a Minister appointed by the First Minister under Clause 44 to resign in the same circumstances and Clause 46(4)(c) also requires a Junior Scottish Minister to resign in those circumstances. As presently drafted, the Bill does not impose the same requirement on the Scottish Law Officers, although there is nothing to prevent them from doing so voluntarily. We reflected on that point also and concluded that the Bill should provide that the Scottish Law Officers should also be required to tender their resignations if the parliament resolves that the Scottish executive no longer enjoys the confidence of the parliament.

28 Oct 1998 : Column 2029

Amendment 140A contains savings provisions to provide that where the Lord Advocate is required to resign, he shall be deemed to continue in office until his successor is appointed for the purposes of the retained functions. It is important that there should always be a Lord Advocate for the purposes of the conduct of solemn criminal proceedings because all indictments run in the name of the Lord Advocate of the day and would fall if he demits office. I say that, though noble Lords may be aware from newspapers that there is a recent exception in Dumbarton. There is already an express provision in Section 287 of the Criminal Procedure (Scotland) Act 1995 for indictments to remain effective even although the Lord Advocate has demitted office and, where the office of Lord Advocate is vacant, for indictments to be brought in the name of the Solicitor-General. Amendment 140A provides for that provision to continue to have effect. However, as this existing savings provision is only for criminal proceedings, a general saving provision is also required for the purposes of the other retained functions of the Lord Advocate--in particular, his functions in relation to civil proceedings or his other Law Officer functions. I beg to move.